Sleepless Nights For Pro-Devolution Parties- Two-Thirds Ghost Haunts

By Colombo Telegraph -October 26, 2012

Being a part of a two-thirds majority for the Government in Parliament has come back to haunt those parties and individual Members of Parliament who are strong proponents of devolution.

GL - Hakeem - Rajitha

According to the 13th Amendment to the Constitution, a Bill on a matter listed in the Provincial Council List has to be referred to all Provincial Councils for them to express their views on the Bill. The Supreme Court has held that the Divineguma Bill covers several matters in the Provincial Council List. If all Provincial Councils agree to the passing of the Bill, then the Bill will become law and be applicable to the whole country if it is passed by a simple majority in Parliament. However, if one or more Provincial Councils do not agree, the Bill must be passed by a two-thirds majority if it is to apply also to those Provinces that have not agreed but if the Bill is passed by a simple majority, the Bill will apply only to those Provinces which have agreed.

Article 154 G (3) states:

(3) No Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President , after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon, within such period as may be specified in the reference, and – where every such Council agrees to the passing of the Bill, such Bill is passed by a majority of the Members of Parliament present and voting ; or where one or more Councils do not agree to the passing of the Bill, such Bill is passed by the special majority required by Article 82:

Provided that where such reference, some but not all the Provincial Councils agree to passing of a Bill, such Bill shall become law applicable only to the Provinces for which the Provincial Councils agreeing to the Bill have been established, upon such Bill being passed by a majority of the Members of Parliament present and voting.

One of the legal issues that have arisen is whether the Governor of the Northern Provincial Council could have expressed agreement to the Divineguma Bill in the absence of the Northern Provincial Council being constituted. While the Northern Provincial Council has been established, it will be constituted only when an election has been held. The first election to a Provincial Council can be held by the Commissioner of Elections only consequent to a direction from the President to hold such election. The President has not given such a direction. For subsequent elections, no direction from the President is necessary.

Legal experts contacted by the Colombo Telegraph stated that if the Supreme Court holds that the Governor of the Northern Provincial Council could have expressed agreement, then the Bill will become law and apply to the Northern Province also even if passed by a simple majority. However, if the Supreme Court holds that the Governor could not have expressed agreement on behalf of the Council, then a two-thirds majority would be needed if the new law is to apply to the Northern Province as well but if not passed by a two-thirds majority, the law will not apply to the Northern Province.

This is where pro-devolution parties come into play. Can parties such as the Sri Lanka Muslim Congress and the Left parties afford to be a part of a two-thirds majority that foists the Divineguma Bill on the Northern Province?

The Sri Lanka Muslim Congress has already initiated disciplinary action against its Provincial Councillors from the Eastern Province for voting in favour of the Bill when the matter was voted upon in the Eastern Provincial Council. It will now be extremely difficult for that party to vote for the Bill in Parliament, let alone not be a part of a two-thirds majority.

The Left parties have already burnt their fingers and come under heavy criticism for voting in favour of the 18th Amendment. At the Special Congress of the Communist Party of Sri Lanka scheduled to be held on 28 October, the Party is expected to resolve that voting for the 18th Amendment was a mistake. The draft resolution to be presented states so. Professor Tissa Vitarana, the leader of the Lanka Sama Samaja Party, has stated that while the Left parties were opposed to the 18th Amendment, their vote became of no consequence after the Sri Lanka Muslim Congress decided to vote in favour and thereafter the 18th Amendment had the necessary two-third majority. This argument has been met with ridicule with critics questioning why the Left MPs could not have voted on a matter of principle.

Even Minister Douglas Devananda will find it difficult to be a part of a two-thirds majority that foists a Bill on the Northern Province when an elected Council has not consented to the Bill. He is expected to be the Chief Ministerial candidate of the United People’s Freedom Front when elections are held for the Northern Provincial Council and would stand to draw the ire of the people of that Province. Ministers such as Rajitha Senaratne, John Seneviratne and Dilan Perera too have been outspoken proponents of devolution and would find themselves in a difficult position. Recently Anuruddika Perera, a young UPFA MP from the Puttalam District, boldly stated in Parliament that those who are for the abolition of the 13th Amendment should leave the UPFA. Political analysts state that it would have been different if all Provincial Councils had agreed to the Bill. But if the Supreme Court holds that the Governor of the Northern Province cannot give consent to the Bill on behalf of the Northern Provincial Council, then pro-devolution MPs will be in a quandary.

The question is of course moot until the Court’s decision is known. But already, the discussion has begun on the eventuality.